Mahfooz Ali Khan v. Additional District Judge — 1985 DIGILAW 19 (ALL)

JUDGMENT : S.D. Agarwala, J. This is a petition under Article 226 of, the Constitution of India. Maqsood Ali Khan filed suit No. 496 of 1974 for a redemption against the Respondents No. 9 to 14. Petitioners are the heirs of Maqsood Ali Khan. This suit was decreed on 16-12-1975. When the decree was put in execution, Respondents No. 3 to 8 filed suit No. 158 of 1976 for injunction restraining Maqsood AH Khan from taking possession of the property in dispute on the ground that the Respondents No. 3 to 8 were not parties to the suit No. 496 of 1974 and that they have a right in the property in dispute. Respondents Nos. 3 to 8 are the children and wife of Amir Dullah Khan, Smt. Fahima Qamar Khan. 2. In suit No. 158 of 1976, hereinafter referred to as the 1976 suit, the Respondents No. 3 to b made an application for a temporary injunction. This application was rejected on 28th July, 1976. - Thereafter Respondents No. 3 to 8 filed an appeal against the order' dated 28th July 1976 which was also dismissed. 3. Smt. Shahzad Begum, thereafter, who was one of the Defendants of suit No. 496 of 1974, hereinafter referred as the 1974 suit, moved an application for setting aside the decree dated 16-12-1975 passed in 1974 suit. The trial court after hearing both the parties came to the conclusion that the order dated 16-12-1975 was an ex-parte order against Smt. Shahzad Begum. Consequently, by an order dated 20th January, 1977 the alleged exparte decree was set aside. The order dated 20ta January, 1977 was challenged by Maqsood Ali Khan in revision before the District Judge, Rampur. During the pendency of the revision before the District Judge, Rampur, the parties entered into a compromise. The court though dismissed the revision but directed the trial court to decide the case in the light of the terms of the compromise arrived at between the parties. 4. While the revision was pending, the Respondents No. 3 to 8 moved an application for impleadment in the suit. This application for impleadment was rejected on 25th February, 1977 by the trial court. The Respondents 3 to 8 then made another attempt to file an impleadment application. Ultimately, by an order dated 21-11-1977 the impleadment application was allowed by the trial court. This application for impleadment was rejected on 25th February, 1977 by the trial court. The Respondents 3 to 8 then made another attempt to file an impleadment application. Ultimately, by an order dated 21-11-1977 the impleadment application was allowed by the trial court. This order dated 21-11-1977 was challenged by Maqsood Ali Khan before this Court. This Court by an order dated 11-11-80 set aside the order dated 21-11-1977. Against the order of the High Court dated 11-11-1980 the Respondents No. 3 to 8 filed a SLP before Hon'ble Supreme Court which was also dismissed on 16-11-1981. In the order the Supreme Court observed that any decree passed between the present parties to the litigation could not be binding or executable against the Petitioners. The ultimate effect of the order of Supreme Court was that the Respondents No. 3 to 8 were not permitted to be made parties in 1974 suit. 5. This 1976 suit was also dismissed in default on 23rd April, 1979. The Respondents No. 3 to 8 did not file any application for restoration of the suit within time. Thereafter they did move an application for restoration of the suit and the suit was restored on 24-11-1981. The order dated 24-11-1981 has now been challenged by the Petitioners in revision before the District Judge, Rampur. In any case the ultimate effect is that 1976 suit is still pending. 6. After remand of 1974 suit due to compromise between the parties, an application was filed in the trial court by the parties that a final decree for redemption and mortgage be passed in place of a preliminary decree in terms of compromise. This application was allowed on 5th of March, 1982 and thereafter a final decree for redemption was prepared in the light of the compromise entered into between the parties. After the proceedings were over, the Respondents No. 3 to 8 filed an application u/s 151 read with Order XXI Rule 58 of CPC in the execution of decree passed in the suit of 1974. During the course of arguments, counsel for the Respondents No. 3 to 8 stated that the objection be treated only u/s 151 CPC and not under Order XXI Rule 58 Code of Civil Procedure. Consequently, the objections were confined only to Section 151 Code of Civil Procedure. During the course of arguments, counsel for the Respondents No. 3 to 8 stated that the objection be treated only u/s 151 CPC and not under Order XXI Rule 58 Code of Civil Procedure. Consequently, the objections were confined only to Section 151 Code of Civil Procedure. The executing court by an order dated 14th December, 1982 held that the decree passed in the suit of 1974 is without jurisdiction and void and cannot be executed and thereafter allowed the application u/s 151 CPC and struck off the decree in question. This order of the executing court dated 14th December 1982 was challenged in revision by the Petitioners. The revision was dismissed by the revisional court on 25th September, 1984. The Petitioners have now challenged the orders dated 14-12-1982 and 25th September, 1984 before this Court by means of the present petition. 7. Learned Counsel for the Petitioner has contended firstly that the application u/s 151 of CPC moved by the Respondent Nos. 3 to 8 was not maintainable in law for setting aside an ex-parte decree and secondly that in any case the executing court cannot during the course of execution set aside a decree which is being executed by it and as such the order is wholly without jurisdiction. 8. From the facts narrated above, it is clear that the Respondent Nos. 3 to 8 are not claiming any right through the judgment-debtor. Section 47 of the CPC provides that all the questions arising between the parties to the suit in which the decree was passed or their representative and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit. It has been further provided that where a question arises as to whether any person is or is not the representative to a party, such question also be determined by the executing court. Section 47 of the CPC enables parties to the suit in which the decree was passed to approach the executing court for deciding a question relating to execution, discharge, or satisfaction of the decree. It is well settled that the executing court cannot go behind the decree. Section 47 of the CPC enables parties to the suit in which the decree was passed to approach the executing court for deciding a question relating to execution, discharge, or satisfaction of the decree. It is well settled that the executing court cannot go behind the decree. In case the holder of a decree for possession of Immovable property is resisted or obstructed by any person other than the judgment-debtors, it is open to the decree holder to move an application under Order XXI Rule 97 of the CPC in the executing court complaining of such resistance or obstruction. The court then shall proceed to adjudicate upon the application. CPC lays down a detailed procedure as to how the decree would be executed. A person who is not a party to a decree or who does not claim through any such party, has not been given any right in execution (?) proceedings under the CPC to challenge a decree passed which is sought to be executed. In this view of the matter an application u/s 151 CPC is not maintainable for challenging a decree. It is well settled as stated above that the executing court cannot go behind the decree. The remedy which is available to a third party, in case it is urged by him that the decree is not executable against him, is to file a fresh suit challenging the decree. 9. In Usha Jain v. Manmohan Bajai AIR 1980 M.P. 148 a Full Bench of Madhya Pradesh High Court has laid down that the executing court has no jurisdiction to start an inquiry suo moto or at the instance of a third party. The only remedy available to a third party is to institute an independent civil suit for declaration of his title claiming therein the relief of temporary injunction to protect his possession. This view was accepted by this Court in the case of Kiskna Kumar Kanaujia v. Smt. Ramkesh Gupta 1983 AWC 245 . I fully agree with the view taken in the case of Usha Jain (Supra). In the circumstances, I am of the opinion that the application u/s 151 CPC for setting aside the decree was not maintainable at all. 10. In the instant case, the executing court has curiously instead of executing the decree himself started an inquiry as to whether the suit itself was barred by time. In the circumstances, I am of the opinion that the application u/s 151 CPC for setting aside the decree was not maintainable at all. 10. In the instant case, the executing court has curiously instead of executing the decree himself started an inquiry as to whether the suit itself was barred by time. It held that the suit was barred by time and as such the decree was without jurisdiction. The executing court cannot go behind the decree. It has no jurisdiction whatsoever to set aside the decree or hold that the decree is non-existent in the eye of law. The entire order passed by the executing court is consequently without jurisdiction firstly, for the reason that no application u/s 151 of CPC is maintainable on behalf of a third party to set aside the decree in execution and secondly, the executing court cannot go behind the decree and determine the question relating to the merits of the suit on the basis of which the decree was passed. In view of the above, both the submissions made by the learned Counsel for the Petitioner are well founded. 11. I, accordingly, allow the petition, quash the order dated 14th December, 1982 passed by the executing court and the order in revision dated 25-9-1984 passed by the Additional District Judge, Rampur. The parties are, however, directed to bear their own costs.